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As the vote on 5th U.S. Circuit Court of Appeals nominee Charles Pickering Sr. was tabled for a second time on March 7, the partisan tension at the Senate Judiciary Committee expanded from mere sniping to far-fetched proposals to rejigger the nominations process. And for the first time since last year, the White House brought strong pressure to bear on the process last week, playing a part in a carefully orchestrated effort to make life difficult for Democrats intent on rejecting Pickering. Sen. Orrin Hatch, R-Utah, took the lead at the hearing where the Pickering vote was scheduled to take place, blaming liberal advocacy groups for a “lynching” of Pickering, a word that carries particular bite when applied to a Mississippi judge accused of racial insensitivity. The word also recalls Clarence Thomas’ 1991 reference to his Supreme Court confirmation battle as a “high-tech lynching.” While Hatch invoked his right to delay the Pickering vote for a week, other senators turned their attention more generally to the nominations process. Sen. Arlen Specter, R-Pa., proposed that the committee adopt a rule that would automatically bring to the Senate floor any nomination disapproved on a 10-9 party-line vote, as appears to be Pickering’s destiny. After the hearing, a Bush administration official echoed the sentiment, saying that a party-line rejection of Pickering would spur angry Republicans to apply “pressure for changing the traditional understanding of the committee’s role” in the confirmation process. But a Democratic staffer pooh-poohed the Specter proposal as a nonstarter that would in effect make the committee’s actions irrelevant. If such a change were to take place, Republicans would almost surely live to regret it whenever the party returns to the Senate majority. Last week, President George W. Bush personally jumped into the Pickering debate, hosting the Mississippi judge and 10 supporters in the Oval Office on March 6 and calling the nominee “a good, honorable citizen” who should be confirmed. Separately, Bush again singled out D.C. Circuit nominee Miguel Estrada for attention, telling the Hispanic Chamber of Commerce at a White House gathering that Estrada “is a good, solid jurist who ought to be on that bench.” The administration official says this may not be the last time that Bush gets involved. “Unless and until the president becomes satisfied that the Democrats in the Senate are discharging their responsibility in a fair and reasonable way, he will not stay silent,” says the official. This official says the most important aspect of the Pickering fight is whether the nominee gets a floor vote. Republicans believe they have the votes to confirm Pickering in the full Senate, but have not found a way — through rule changes, a discharge petition, a vote to forward the nomination without recommendation, or any other mechanism — to get the matter out of committee. “If a majority of senators don’t want to confirm Pickering, we would disagree, but I don’t think anyone would feel that the process was unfair,” says this source. “But if the final vote on Pickering is 10 to 9, a lot of people will feel aggrieved.” Elliot Mincberg, a leading Pickering opponent, lays the blame for the ugliness of this year’s confirmation politics squarely on the administration. “Even the Reagan administration did not threaten to change the rules,” says Mincberg, legal director of People for the American Way and a longtime liberal advocate. “We will not oppose all conservatives,” says Mincberg, who points out that Edith Brown Clement, a Federalist Society member, was unanimously confirmed last November for the 5th Circuit. “But some nominees, like Pickering, do raise serious issues.” Mincberg says the Pickering showdown is producing “a ratcheting up of tension” that would affect future judge nominees this year. But, he adds, it may also be a “wake-up call” to the administration to consult more closely with Democrats in the nomination process. FIRM JUDGMENT Are major law firms chalking up pro bono hours for doing opposition research on Pickering’s record? In a blistering speech at the March 7 hearing, Sen. Hatch charged that Pickering opponents “have enlisted the services of powerful Washington law firms, who are aiding the smearing campaign on a pro bono basis with young lawyers.” Hatch did not specify which firms he had in mind or precisely what work they were doing. The senator was unavailable for an interview, and his spokeswoman, Margarita Tapia, says she is aware only of the participation of the firms mentioned on www.independentjudiciary.com, a Web site run by the liberal Alliance for Justice that contains information about a dozen Bush judicial nominees. But the only firm whose pro bono work is credited on that site is Atlanta’s Powell, Goldstein, Frazer & Murphy — and it’s not in connection with Pickering. The site indicates that lawyers in Powell Goldstein’s D.C. office have worked with the Human Rights Campaign (HRC), a group advocating for the rights of gay and lesbian citizens, in researching the record of 10th Circuit nominee Michael McConnell. On the Pickering matter, both Nan Aron, president of the Alliance for Justice, and Mincberg say they have not enlisted any law firm help but have relied entirely on the work of their staffs. Anthony Varona, legal director of the HRC, says Powell Goldstein lawyers “looked and found everything that McConnell had written, then summarized it in an objective way and shared it with us and with the Alliance for Justice.” He says the firm lawyers did not take a stand for or against McConnell or recommend any point of view to the HRC. Jessica Abrahams, a Powell Goldstein partner who chairs the firm’s pro bono committee, confirms that since May 2001, the firm has done pro bono research on judges for the HRC. “We agreed to become the general counsel for the HRC on judges. They identify the judge, and we research his or her cases, opinions, and history.” Abrahams says, however, that the firm has never done any research on Pickering. Not all law firms would accept this type of work as part of their pro bono program. Susan Hoffman, pro bono partner at D.C.’s Crowell & Moring, says that research for organizations supporting or opposing a judicial nomination would not qualify under her firm’s pro bono standards since it does not directly involve providing legal services to minorities, the poor, or others who need help. “This would be outside the American Bar Association guidelines, as I read them,” Hoffman says. Abrahams responds that her firm sees this work for the HRC as falling within two provisions of the Model Code on Professional Responsibility. These define pro bono activity as including legal work that is intended to “secure or protect civil rights, civil liberties, or public rights,” as well as work that is designed to “improve the law, the legal system, or the legal profession.” DAMN YANKEES The Pickering nomination has led to considerable talk about the nation’s history of racial discrimination. But at the March 6 White House news conference, Pickering’s supporters raised the specter of another form of bias, this one based on regional prejudices. “All these so-called liberals are talking about what’s good for so-called downtrodden Mississippi,” said civil rights leader Charles Evers, who flew up that morning with other home-state backers of the judge to meet with President Bush and to lobby senators. “It’s not the NAACP down there that opposes Pickering,” Evers said to the press at a gathering on the White House lawn. “It’s the Yankees up here.” The local NAACP in Pickering’s county does not oppose the nominee, but the national office and the Mississippi state chapters have come out against him. “It’s easy to beat up on Mississippi up here in Washington,” said Mississippi Attorney General Mike Moore, a Democrat who supports Pickering. Moore pointed to the knot of people beside him. “These are elected black officials from the town where the man is from. If he were a racist, would I come up here and risk my career?” Moore said, adding that he views Washington as a “logic-free zone.” Pickering’s opponents were quick to reply. “This idea that all of Mississippi is for him is wrong,” said Sen. Charles Schumer, D-N.Y., at the committee meeting. Schumer noted that the day before, 31 black members of the Mississippi state legislature signed a letter opposing Pickering because of his “views and rulings on interracial marriage, labor issues, civil and voting rights, and women’s rights.”

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